Publishing material which a judge has withheld from a jury is not of itself a contempt of court – the publication must give rise to a substantial risk of serious prejudice to the proceedings, the President of the Queen's Bench Division said today.
Sir John Thomas, sitting with Mr Justice Tugendhat, was giving the court's reasons for finding that the Daily Mail and Daily Mirror both committed contempt of court, in breach of the strict liability rule, with their coverage of the conviction of Levi Bellfield for the abduction and murder of schoolgirl Milly Dowler.
The coverage appeared in the two newspapers on June 24 last year, the day after the Old Bailey jury convicted Bellfield, but while it was still due to consider its verdict on a second charge, that he attempted to kidnap Rachel Cowles, another schoolgirl, on the day before he abducted Milly.
Mr Justice Wilkie discharged the jury from reaching a verdict on that charge following an application by Bellfield's defence, saying it was "wholly unrealistic and quite hopeless" for the jury "to try to put that avalanche of material out of its mind, either individually or collectively".
The Attorney General, Dominic Grieve QC, subsequently obtained leave to bring proceedings against both Associated Newspapers, the Daily Mail's publisher, and MGN Ltd, the Daily Mirror's publisher, for breaching the strict liability rule under the Contempt of Court Act 1981, which makes it a contempt to publish material which creates a substantial risk of serious prejudice to active proceedings.
Sir John said there were two factual sub-issues in the case.
The first was whether the publications in the two newspapers could have caused a substantial risk of serious prejudice, given what the jury had been told about Bellfield during the trial, and its decision to convict him of kidnapping and murdering Milly Dowler.
The second was whether what was broadcast on the evening of the verdict in television news programmes meant that the newspapers' publications could not have given rise to a substantial risk of serious prejudice the following morning.
On the question of what the jury already knew, Sir John said jurors were told that in 2008 Bellfield was convicted of murdering two young women and attempting to murder a third.
During the trial jurors had also heard from Bellfield's ex-wife, who gave evidence linking him to the area where Milly Dowler's body was found, and his ex-girlfriend, who had moved to a women's refuge following the breakdown of their relationship, although Bellfield was allowed unsupervised contact with his children.
But Mr Justice Wilkie had refused to allow the jury to hear evidence that Bellfield had an interest in schoolgirls in uniform, holding that it would be highly prejudicial while its probative value was limited.
He also refused to allow the jury to hear evidence about the alleged attempted abduction of another girl.
Sir John said the Daily Mail's coverage on June 24 included "two key matters" which were not before the jury – a story detailing allegations linking Bellfield to the 1996 murders of Lin Russell and her daughter Megan, including a comparison on Bellfield's picture with an e-fit of the Russells' killer, and another article which reported that Bellfield had a crazed hatred of women and had drugged and raped girls aged between 14 and 16.
The Daily Mirror's coverage, Sir John said, included details of Bellfield's violent treatment and depraved sexual abuse of both his ex-wife and ex-girlfriend, as well as an account of how he raped a disabled girl on the bonnet of a car as well as of his sexual interest in and rape of girls.
Counsel for the newspapers had argued that given what the jury knew about Bellfield's depravity, these further descriptions of it could not have resulted in a substantial risk of serious prejudice – the jury would have disregarded the material and reached their verdict according to the evidence.
Sir John said: "I accept that the publication of material that a judge has withheld from the jury does not per se involve a breach of the strict liability rule, though it might well be contempt at common law if the necessary intention could be established. It is necessary that the publication gives rise to a substantial risk of serious prejudice."
He went on: "The material in each newspaper was in my view highly prejudicial to Bellfield in that it set out material in relation to his sexual perversion in relation to his partners and his perverted interest in and rape of girls.
"I accept that some of the evidence given was highly prejudicial, but this material went way beyond what the jury had been told about Bellfield, murderer though they knew him to be and had again found him to be.
"There was a real risk that the jury would have thought that the additional material was relevant to the remaining count where he was charged with attempting to abduct a schoolgirl.
"I am quite satisfied that both the Daily Mail and the Daily Mirror by publishing the further material, particularly that relating to his rape of girls, created a quite separate and distinct risk of serious prejudice."
On the issue of the effect of the news broadcasts on the evening of the day Bellfield was convicted of Milly Dowler's murder, Sir John said there was a "clear" contrast between what was reported on the news channels and what was published in the Daily Mail and the Daily Mirror.
While there were references on the news channels to Bellfield's abuse of his former wife and ex-girlfriend, the latter specifically accusing him of rape, and, on Sky News, an extensive item on the Russell murder "none carried the allegations of a sexual interest in girls or his rape of girls".
"In my judgment, although there was no further or additional prejudice resulting from the publication of that part of the article in the Daily Mail that related to the Russell murder, there was further and additional risk of prejudice created by the articles in both The Daily Mail and the Daily Mirror in relation to Bellfield's interest in and rape of girls," Sir John said.
"The terms in which those articles were written did, in my judgment, significantly exacerbate the risk of serious prejudice."
While he had considered each factual sub-issues separately, it was necessary to ask the overall question of whether each publication created a substantial risk of seriously prejudicing the course of justice in the continuing trial, he said.
"I am sure that each publication did create such a substantial risk of serious prejudice," Sir John said.
"The allegations of his sexual interest in and depraved conduct to young girls was highly prejudicial to the count that the jury were then still considering.
"What was set out went way beyond what the jury had been told or what had been broadcast on the preceding evening. I have little doubt that if the jury had not been discharged, there would have been a seriously arguable point that the conviction was unsafe."